ILAB, OSEC Notices

Notice of Final Determination Updating the List of Products Requiring Federal Contractor Certification as to Forced or Indentured Child Labor Pursuant to Executive Order 13126   [7/20/2010]
[PDF]
FR Doc 2010-16886
[Federal Register: July 20, 2010 (Volume 75, Number 138)]
[Notices]               
[Page 42164-42167]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jy10-98]                         

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DEPARTMENT OF LABOR

Office of the Secretary of Labor

 
Notice of Final Determination Updating the List of Products 
Requiring Federal Contractor Certification as to Forced or Indentured 
Child Labor Pursuant to Executive Order 13126

AGENCY: Bureau of International Labor Affairs, Labor.

ACTION: Notice of final determination.

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SUMMARY: This final determination updates the list required by 
Executive Order No. 13126 (``Prohibition of Acquisition of Products 
Produced by Forced or Indentured Child Labor''), in accordance with the 
``Procedural Guidelines for the Maintenance of the List of Products 
Requiring Federal Contractor Certification as to Forced or Indentured 
Child Labor.'' This notice sets forth an updated list of products, by 
country of origin, which the Departments of Labor, State and Homeland 
Security, have a reasonable basis to believe might have been mined, 
produced, or manufactured by forced or indentured child labor. Under a 
final rule by the Federal Acquisition Regulatory Council, published 
January 18, 2001, which also implements Executive Order No. 13126, 
Federal contractors who supply products on this list are required to 
certify, among other things, that they have made a good faith effort to 
determine whether forced or indentured child labor was used to produce 
the item.

DATES: This document is effective immediately upon publication of this 
notice.

SUPPLEMENTARY INFORMATION: 

I. Background

    Executive Order No. 13126 (EO 13126), which was published in the 
Federal Register on June 16, 1999 (64 FR 32383), declared that it was 
``the policy of the United States Government * * * that the executive 
agencies shall take appropriate actions to enforce the laws prohibiting 
the manufacture or importation of good, wares, articles, and 
merchandise mined, produced or manufactured wholly or in part by forced 
or indentured child labor.'' Pursuant to EO13126, and following public 
notice and comment, the Department of Labor published in the January 
18, 2001, Federal Register, a final list of products (the ``EO List''), 
identified by their country of origin, that the Department, in 
consultation and cooperation with the Departments of State and Treasury 
[relevant responsibilities now within the Department of Homeland 
Security], had a reasonable basis to believe might have been mined, 
produced or manufactured with forced or indentured child labor (66 FR 
5353). In addition to the List, the Department also published on 
January 18, 2001, ``Procedural Guidelines for Maintenance of the List 
of Products Requiring Federal Contractor Certification as to Forced or 
Indentured Child Labor'' (Procedural Guidelines), which provide for 
maintaining, reviewing, and, as appropriate, revising the EO List (66 
FR 5351). On September 11, 2009, in consultation and cooperation with 
the Department of State and the Department of Homeland Security, the 
Department of Labor published an initial determination proposing to 
update the EO List in the Federal Register (74 FR 46794), explained how 
the initial determination was made, and invited public comment through 
December 10, 2009. The initial determination and Procedural Guidelines 
can be accessed on the Internet at http://www.dol.gov/ILAB/regs/
eo13126/main.htm or can be obtained from: OCFT, Bureau of International 
Labor Affairs, Room S-5317, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone: (202) 693-4843; fax (202) 
693-4830.
    Pursuant to section 3 of E. O. 13126, the Federal Acquisition 
Regulatory Councils published a final rule in the Federal Register on 
January 18, 2001, providing, amongst other requirements, that Federal 
contractors who supply products that appear on the EO List issued by 
the Department of Labor must certify to the contracting officer that 
the contractor, or, in the case of an incorporated contractor, a 
responsible official of the contractor, has made a good faith effort to 
determine whether forced or indentured child labor was used to mine, 
produce or manufacture any product furnished under the contract and 
that, on the basis of those efforts, the contractor is unaware of any 
such use of child labor. See 48 CFR Subpart 22.15.

II. Summary and Discussion of Significant Comments

    Forty three public comments were received either through written 
submissions or through meetings held with the Department of Labor. All 
comments are available for public viewing at http://www.regulations.gov

[[Page 42165]]

(reference Docket ID No. DOL-2009-0002). In developing the final list 
of products, the public comments have been carefully reviewed and 
considered. The following is a summary of the significant or common 
comments and the responses.

A. Comments Asserting That Forced Child Labor Is Not Used in the 
Production of Products Named on the List

    Multiple comments were received asserting that child labor and 
forced or indentured child labor did not exist or were not pervasive in 
the production of a variety of products. However, these assertions were 
not substantiated through the provision of data or information to 
demonstrate that the assertions were true. When analyzing comments, the 
information provided was reviewed to determine if it negated the 
original conclusion published in the initial determination or if it 
demonstrated that forced or indentured child labor has been 
significantly reduced or eliminated. In all cases, except carpets from 
India (see below), such information was not provided.

B. Comments on Efforts To Combat Forced or Indentured Child Labor

    Multiple comments from governments and industry groups were 
submitted that provided detailed descriptions of legislation, policies 
and efforts to combat child labor and forced or indentured child labor 
generally, and in some cases, in particular sectors. This information 
was considered carefully and, while the important role of setting a 
solid legislative and policy framework and implementing initiatives by 
governments, industry and third party groups is clear, information on 
such efforts alone, without evidence that indicates that the efforts 
had significantly reduced or eliminated forced or indentured child 
labor, was not sufficient to remove an item from the EO List. Inclusion 
on the EO List indicates that the three Departments have a reasonable 
basis to believe forced or indentured child labor ``might have'' been 
used in the production of the named products and evidence of efforts 
alone would not be enough to require removal of a product from the EO 
List. The Department of Labor will continue to assess the progress of 
these efforts and welcomes further information from the public on the 
results of these efforts, in particular, evidence of actions and 
initiatives that have significantly reduced if not eliminated forced or 
indentured child labor in the production of a specific product named on 
the list.

C. Comments on Monitoring and Auditing Systems

    Multiple comments were received describing efforts by government, 
industry and third parties to monitor and audit the establishments that 
produce many of the products named on the preliminary list. While such 
information is important and valuable in determining compliance with a 
variety of labor and other standards, in most cases, the information 
received did not provide sufficient description, data or evidence to 
demonstrate that forced child labor is not being used in the production 
process. Examples of specific limitations of the information received 
included, submission of general and broad statements describing 
monitoring and auditing programs without including details; submissions 
only related to products that are inspected for export rather than 
industry as a whole; examples of individual monitoring and auditing 
forms without presentation of and analysis of overall data collected; 
presentation of information only at the primary factory level and not 
down the supply chain; and lack of evidence of explicit monitoring for 
forced or indentured child labor. It is important to clarify that the 
EO List does not make distinctions between products that are exported 
or those that are produced for domestic consumption, nor does it 
distinguish between products produced in a main/final establishment 
versus products produced by suppliers and contractors further down the 
supply chain.
    One submission did provide information that addressed many of the 
limitations described above. This submission described the nation-wide, 
third party monitoring of registered carpet looms in India, gave 
details of the monitoring program of registered looms and provided 
detailed analysis of data results related to child labor. Such detailed 
information on the monitoring of registered looms provided an analysis 
suggesting that child labor, including forced child labor, has been 
significantly reduced in the production of carpets in India. While the 
submission only addressed registered looms, it provided enough 
information to warrant further consideration of the matter especially 
given that a Department of Labor contractor is undertaking extensive 
research on child and forced labor in carpet production in South Asia, 
including India. The Department expects to receive information on the 
use of forced child labor on both registered and unregistered looms 
through this research and intends to wait until that time before a 
final decision is made on adding carpets from India to the EO List.

D. Comments on Procedures Related to Publication of the List

    A variety of comments were received related to the methodology and 
process used to place products on the EO List, in particular on the 
date and reliability of sources, on the ``reasonable basis to believe'' 
criteria, and on the lack of perceived consultation prior to 
publication of the initial determination proposing to update EO List. 
Concerning the date and reliability of the sources, the Department of 
Labor considered information up to seven years old at the time of 
receipt. More current information has been generally given priority, 
and information older than seven years generally has not been 
considered, with the exception of child labor survey data, which the 
Department of Labor has found to be reliable over a longer period of 
time. The Department of Labor's experience is that the use of forced or 
indentured child labor in a country or in the production of a 
particular product typically persists for many years, particularly when 
no meaningful action is taken to combat it. Information about such 
exploitive activities is often actively concealed and therefore 
information that is several years old can still provide useful context 
for more current information. When determining whether a source should 
be included, the following factors were considered either from primary 
or secondary sources: the methodology, prior publications, degree of 
familiarity and experience with international labor standards, and/or 
reputation for accuracy and objectivity.
    Some submissions raised concern that the ``reasonable basis to 
believe'' standard is relatively low. This standard was established in 
EO13126 and the Department believes that the standard is appropriate 
given the nature of the EO List and the challenge in finding data. The 
EO List does not reflect a determination that forced or indentured 
child labor actually was used to produce a particular product. Rather, 
it establishes the need for further inquiry by a Federal contractor who 
wishes to supply the product, in order to make sure that forced or 
indentured child labor was not, in fact, used. The factors consider in 
determining whether a ``reasonable basis to believe'' exists for the 
inclusion of a product on the EO List are set forth in the Department 
of Labor's January 18, 2001, Procedural Guidelines (66 FR 5351), as 
well as the Department's September 11, 2009,

[[Page 42166]]

Notice of Initial Determination (74 FR 46794).
    Several submissions from both governments and industry groups 
described their frustration at not being consulted prior to publication 
of the initial determination on September 11, 2009. EO13126 does not 
require the Department to engage in such consultations, although the 
Department did undertake a series of activities to gather information 
from the public on child labor and forced labor more broadly prior to 
publication of the initial determination, including a public request 
for information published in the Federal Register and a public hearing 
on May 28, 2008. Additionally, the primary purpose of the initial 
determination proposing to update the EO List and the accompanying 90-
day public comment period was to gather additional information from the 
public and a wide variety of stakeholders prior to publication of the 
final determination.

E. Comments Related to Impact of the List on Industries and Exports

    Some comments raised concerns that being named on the EO List would 
negatively affect their trade and export income. It is important to 
note that while the scope of the EO List is global, the application of 
EO13126's requirements is narrow. The EO only affects products being 
procured by the U.S. Government. It is designed to make sure that U.S. 
Federal agencies do not buy products made with forced or indentured 
child labor. The EO reinforces the current law (the Tariff Act of 1930, 
19 U.S.C. 1307, enforced by the Department of Homeland Security) 
prohibition on the import of products made with forced or indentured 
child labor. There is nothing in the EO that provides for trade 
sanctions or penalties against countries. Rather, EO13126 requires U.S. 
Federal contractors who furnish a product on the EO List to certify 
that forced or indentured child labor was not used to make the product.

F. Comments on Discrepancies Between the 2001 List and the Current List

    Several comments noted that products are included in the proposed 
update to the EO List that were not included in the existing EO List, 
most specifically carpets from India, Nepal and Pakistan. The research 
for the current proposed update to the EO List covers information 
published from 2001 onward, which includes information not available at 
the time of the publication of the 2001 EO List. Therefore, the product 
lists will not necessarily be the same as the period of review and 
available data sources are different.

G. Comments Related to the Trafficking Victims Protection 
Reauthorization Act List of Goods Made With Child Labor or Forced Labor

    Multiple submissions included information that addressed goods 
named on the List of Goods Made with Child Labor or Forced Labor 
pursuant to the 2005 Trafficking Victims Protection Reauthorization Act 
(TVPRA List), which was published on the same date as the proposed 
update to the EO List. The Department would like to clarify that these 
two lists are produced under separate mandates and the public comment 
period identified for submissions relevant to the EO List initial 
determination did not apply to the TVPRA List. EO13126 is intended to 
ensure that Federal agencies enforce laws relating to forced or 
indentured child labor in the procurement process. Thus, the EO List 
differs from the TVPRA List, which is intended to promote efforts to 
monitor and combat forced labor and child labor in the production of 
goods in foreign countries. The EO on Federal procurement applies only 
to the goods on the EO List, not to those on the TVPRA List. In 
addition, the EO List covers forced or indentured child labor, while 
the TVPRA List focuses on a broader population, including adults in 
forced labor and children in exploitive labor that is not necessarily 
forced or indentured.
    While the process for updating the EO List does not apply to the 
TVPRA List, the ongoing maintenance of the TVPRA list is governed by 
procedural guidelines that are available at http://www.dol.gov/
federalregister/PdfDisplay.aspx?DocId=20376. The Department of Labor 
considered all information received during the EO List public comment 
period addressing goods named on the TVPRA List as an official TVPRA 
list submission and provided that information to the appropriate 
Department staff for their review. Additional information on the TVPRA 
List can be found at http://www.dol.gov/ILAB/programs/ocft/tvpra.htm.

H. Comments Related to Procurement of Products Named on the List

    Two comments were received urging additional measures related to 
enforcement of EO 13126 and clarifications related to the EO List. The 
Department of Labor's only mandate pursuant to the EO is to produce the 
EO List in collaboration with the Departments of State and Homeland 
Security. The enforcement of the procurement regulation (48 CFR subpart 
22.15) issued by the General Services Administration pursuant to the EO 
falls to the various procurement offices in each of the Executive 
Branch agencies. It is up to each agency to determine what guidance, if 
any, is provided to contractors on the EO regulation, as well as to 
determine how they monitor compliance with the EO regulation. Any 
changes to the content of regulation fall under the authority of the 
General Services Administration.
    Specific areas where clarifications were requested related to the 
type and state of the products listed. It was stated that product 
descriptions were often too broad and it was suggested that products be 
named using the harmonized tariff schedule. We believe that the 
descriptions are sufficiently specific based on the nature of the list 
and the types of information that are available. The EO does not 
require the use of the harmonized tariff schedule in the products list. 
At this time, the Departments do not have reason to believe that the 
use of such terminology in the EO List would result in more efficient 
implementation of EO 13126. Additionally, it was requested that the 
Department of Labor clarify that 48 CFR subpart 22.15 only applies to 
the end product named on the EO List. It is not the Department's role 
to interpret the applicability of the regulation on behalf of the 
General Services Administration. However, the Department of Labor can 
clarify that the placement of a good on the EO List depends on the 
stage of production at which forced or indentured child labor was 
involved. For example, if forced child labor was used in the 
extraction, harvesting, assembly, or production of raw materials or 
component articles, and these materials or articles are subsequently 
used under non-violative conditions in the manufacture or processing of 
a final good, only the raw materials or component articles are on the 
EO List and only for those countries where they were extracted, 
harvested, assembled, or produced. If forced or indentured child labor 
was used in both the production or extraction of raw materials or 
component articles and the manufacture or processing of a final good, 
then both the raw materials or component articles and the final good 
are included on the EO List.

III. Final List of Products

    We have determined that it would be appropriate to publish a final 
list of products that comprises the products included in the initial 
determination, with the exception of carpets from

[[Page 42167]]

India. Other than with regard to the one exception described above, no 
new information was provided through public comments to negate the 
original conclusion or to indicate that forced or indentured child 
labor has been significantly reduced or eliminated in the production of 
the listed products. The basis for including those products on the list 
is set forth in the Department of Labor's September 11, 2009, notice in 
the Federal Register (74 FR 46794). As noted in the September 11 
notice, information provided in a public submission by Free the Slaves, 
alleging forced or indentured child labor in the cocoa industry in Cote 
d'Ivoire, and a public submission by State Department Watch, alleging 
forced or indentured child labor in the production of eight products in 
China, both filed pursuant to section D of the Procedural Guidelines 
(66 FR 5351), was considered in finalizing the update to the EO List. 
This final determination completes consideration of the two 
submissions. The final list of products appears below.
    Based on recent, credible, and appropriately corroborated 
information from various sources, the Department of Labor, the 
Department of State, and the Department of Homeland Security have 
concluded that there is a reasonable basis to believe that the 
following products, identified by their country of origin, might have 
been mined, produced, or manufactured by forced or indentured child 
labor:

------------------------------------------------------------------------
                  Product                             Countries
------------------------------------------------------------------------
Bamboo....................................  Burma.
Beans (green, soy, yellow)................  Burma.
Brazil Nuts/Chestnuts.....................  Bolivia.
Bricks....................................  Burma, China, India, Nepal,
                                             Pakistan.
Carpets...................................  Nepal, Pakistan.
Charcoal..................................  Brazil.
Coal......................................  Pakistan.
Coca (stimulant plant)....................  Colombia.
Cocoa.....................................  Cote d'Ivoire, Nigeria.
Coffee....................................  Cote d'Ivoire.
Cotton....................................  Benin, Burkina Faso, China,
                                             Tajikistan, Uzbekistan.
Cottonseed (hybrid).......................  India.
Diamonds..................................  Sierra Leone.
Electronics...............................  China.
Embroidered Textiles (zari)...............  India, Nepal.
Garments..................................  Argentina, India, Thailand.
Gold......................................  Burkina Faso.
Granite...................................  Nigeria.
Gravel (crushed stones)...................  Nigeria.
Pornography...............................  Russia.
Rice......................................  Burma, India, Mali.
Rubber....................................  Burma.
Shrimp....................................  Thailand.
Stones....................................  India, Nepal.
Sugarcane.................................  Bolivia, Burma.
Teak......................................  Burma.
Tilapia (fish)............................  Ghana.
Tobacco...................................  Malawi.
Toys......................................  China.
------------------------------------------------------------------------

    The bibliographies providing the basis for including each product 
on the list are available on the Internet at http://www.dol.gov/ILAB/
regs/eo13126/main.htm.

    Signed at Washington, DC, this 7th day of July 2010.
Sandra Polaski,
Deputy Undersecretary, Bureau of International Labor Affairs.
[FR Doc. 2010-16886 Filed 7-19-10; 8:45 am]
BILLING CODE 4510-28-P